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HUNTINGDON ENGG. & ENVTL. INC. v. PLATINUM SOFTWAR

April 10, 1995

HUNTINGDON ENGINEERING & ENVIRONMENTAL INCORPORATED and HUNTINGDON INTERNATIONAL HOLDINGS, PLC, Plaintiffs,
v.
PLATINUM SOFTWARE CORPORATION, Defendant.



The opinion of the court was delivered by: WILLIAM M. SKRETNY

 INTRODUCTION

 Before this Court is defendant's motion to dismiss this action for improper venue under Fed. R. Civ. P. 12(b)(3) and 28 U.S.C. § 1406(a). In the alternative defendant requests that this case be transferred to the United States District Court for the District of Columbia pursuant to 28 U.S.C. § 1404(a). Defendant removed this action from state court on February 16, 1995, and then made the instant motion. This action concerns a software license agreement between plaintiff Huntingdon International Holdings, plc ("Huntingdon International") and defendant Platinum Software Corporation ("Platinum"). Defendant moves to dismiss based on a forum selection clause in the software license agreement. This Court has subject-matter jurisdiction under 28 U.S.C. § 1332.

 In support of its motion, defendant has submitted a memorandum of law ("D. Memo"), with exhibits, and a reply memorandum of law ("D. R.Memo"), with exhibits. In opposition to defendant's motion, plaintiffs have submitted a memorandum of law ("P. Memo") and the affidavit of Allan M. Pinchoff ("Pinchoff Aff.").

 For the reasons set forth below, this Court will grant defendant's motion to the extent that it requests transfer of this case to the United States District Court for the District of Columbia pursuant to 28 U.S.C. § 1404(a).

 FACTS

 This action concerns a software license agreement ("the Agreement") between plaintiff Huntingdon International and defendant Platinum. The other plaintiff, Huntingdon Engineering & Environmental, Inc. ("Huntingdon Engineering"), alleges that it is a third party beneficiary of the agreement. Plaintiffs assert claims for breach of contract, including express and implied warranties, fraud, misrepresentation, negligence, violation of the Racketeering Influenced and Corrupt Organizations Act ("RICO"), breach of the duty of good faith and fair dealing, rescission, and attorneys' fees.

 Defendant brings the instant motion based on a mandatory forum selection clause in the Agreement. Section 14(c) of the Agreement provides:

 
This Agreement and performance under this Agreement shall be governed by the laws of the State of California in the United States of America. Venue shall be the U.S. District Court for the District of Columbia.

 (D. Memo, p. 3, exh. 1.) Defendant claims that plaintiffs violated the Agreement by filing suit in state court in Niagara County, New York. Defendant asks this Court to dismiss the action for improper venue or, in the alternative, to transfer it to the United States District Court for the District of Columbia.

 DISCUSSION

 Defendant brings this motion pursuant to Fed. R. Civ. P. 12(b)(3) and 28 U.S.C. § 1406(a). It contends that dismissal under Fed. R. Civ. P. 12(b)(3) for improper venue is appropriate to enforce the forum selection clause. Section 1406(a) provides:

 
The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.

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